May 19, 2013

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Colorado Supreme Court Updates Rules of Criminal and Civil Procedure

March 12, 2013 by Leave a Comment

On March 7, 2013, the Colorado Supreme Court issued Rule Change 2013(03), amending Rules 5 and 7 of the Colorado Rules of Criminal Procedure. The changes to Rule 5, “Preliminary Procedings,” clarify language regarding the felony complaint, and adds language regarding waiver of the right to a preliminary hearing. The changes to Rule 7, “The Indictment and the Information,” discuss filing for preliminary hearings and set forth time limits. In addition, a subsection (i) was added, which provides time limits for requests to transfer cases to juvenile courts. A redline of the changes is available here.

The Supreme Court issued Rule Change 2013(02) on February 21, 2013, which changed Form 20 in the Appendix to Chapters 1 through 17A – Colorado Rules of Civil Procedure.

Rule Change 2013(01) was issued on February 8, 2013. Colorado Rules of Civil Procedure, Rule 16.2 and Rule 313, were amended with this rule change. The changes to Rule 16.2, “Court Facilitated Management of Domestic Relations Cases and General Provisions Governing Duty of Disclosure,” clarify that if an initial expert report is served early, the rebuttal report need not be submitted until 35 days prior to hearing. The changes to Rule 313, “Counterclaim and Cross Claim,” discuss remand to the county court if the counterclaim that caused removal to district court is dismissed.

All of the Supreme Court’s rule changes are available here.

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Colorado Court of Appeals: Review of Sexually Violent Predator Designation is Issue of Law and Not Discretionary

January 3, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Brosh on Thursday, December 27, 2012.

Sexual Assault of a Minor—Sexually Violent Predator Designation—Crim.P. 35(b).

Defendant Jeffrey Brosh appealed the trial court’s order denying his Crim.P. 35(b) motion. The order was affirmed.

Brosh was charged with multiple counts arising from incidents in which he sexually assaulted and provided alcohol to a 12-year-old. Brosh pleaded guilty to one count of sexual assault on a child by one in a position of trust in exchange for dismissal of the other charges.

On appeal, Brosh contended that the trial court should have reconsidered the sexually violent predator (SVP) designation under Crim.P. 35(b) because it is part of his sentence. Sex offender registration is not an element of a defendant’s sentence. Review of an SVP designation is an issue of law, and, unlike the determination of a sentence within the sentencing range, it is not discretionary. Accordingly, discretionary reconsideration of an SVP designation by the trial court under Crim.P. 35(b) is not available.

Brosh also contended that the trial court applied an incorrect legal standard when it determined that it could not grant his Crim.P. 35(b) motion without infringing on the Executive Branch’s authority. The trial court correctly found that it could not modify a sentence based solely on evidence of defendant’s conduct during incarceration. Accordingly, the court did not misapply the law in denying Brosh’s Rule 35(b) motion.

Summary and full case available here.

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Colorado Court of Appeals: Defense Counsel’s Assistance at Trial Court Was Effective in Several Ways

October 31, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Aguilar on Thursday, October 25, 2012.

Crim.P. 11 and 35(c)—Second-Degree Murder—Felony Murder—Burglary—Ineffective Assistance of Counsel—Expert Witness—Jury Instruction—Double Jeopardy Rights—Providency Hearing—Sentencing.

Defendant, appearing pro se, appealed the district court’s order denying his Crim.P. 35(c) motion for post-conviction relief alleging ineffective assistance of counsel. The order was affirmed.

Defendant and his companions broke into the victim’s home, bound and gagged the victim, and covered him with a mattress. They then ransacked the victim’s home and carried items away. The victim was unable to free himself and consequently died. A jury found defendant guilty of first-degree burglary, second-degree burglary, theft, robbery, and conspiracy to commit robbery. The jury could not reach a verdict on a charge of felony murder and a mistrial was granted with respect to that charge. Before the scheduled retrial, defendant pleaded guilty to second-degree murder in exchange for dismissal of the felony murder charge.

Defendant contended that he received ineffective assistance of trial counsel because counsel failed to hire an expert to observe and rebut the prosecution’s use of consumptive DNA testing. Defense counsel’s decision to call or not call his own DNA expert was a matter of trial strategy. Defendant failed to allege facts establishing that counsel’s choice was outside the wide range of professionally competent assistance. Consequently, defendant was not entitled to a hearing on this claim.

Defendant also contended that counsel was ineffective for failing to tender a reckless manslaughter instruction at trial. Defendant’s theory of defense was that he did not cause the victim’s death. Therefore, reckless manslaughter was inconsistent with defendant’s theory of defense and defendant cannot prove that counsel’s performance was deficient in this regard.

Defendant also argued that his trial counsel was ineffective for not advising him of his double jeopardy rights. Specifically, defendant argued that because the jury had convicted him of first-degree burglary, a lesser-included offense of felony murder, he could not be retried for felony murder and, therefore, his counsel was ineffective in neglecting to advise him that he should not plead to another lesser included offense of felony murder. The jury convicted defendant of burglary and expressly hung on the charge of felony murder. The implied acquittal rule does not bar retrial of a greater offense when a jury deadlocks on that charge but convicts on a lesser-included offense. Therefore, a retrial for felony murder would not have violated defendant’s double jeopardy rights. Consequently, his claim that counsel was ineffective for allowing his guilty plea to avoid a second trial failed.

Defendant further contended that he received ineffective assistance of counsel during the Crim.P. 11 providency hearing. However, the plea agreement signed by defendant and the record of the plea hearing do not support defendant’s argument. Because defendant was advised orally or in writing of each of the asserted errors, he failed to establish that his plea was not voluntary, knowing, or intelligent, or that his defense counsel provided deficient performance.

Finally, because defendant’s convictions were not supported by identical evidence, his counsel was not ineffective in failing to secure concurrent sentences. The order was affirmed.

Summary and full case available here.

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Colorado Court of Appeals: Complicitor Liability Does Not Apply to Strict Liability Crime of Vehicular Assault Because Crime Does Not Require Culpable Mental State

July 23, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Childress on July 19, 2012.

Child Abuse—Serious Bodily Injury—Vehicular Assault (DUI)—Complicitor Liability—Bill of Particulars—Unanimity Instruction—Sentencing—Crim.P. 25.

Defendant appealed his judgment of conviction entered on a jury verdict finding him guilty of child abuse resulting in serious bodily injury, vehicular assault (driving under the influence (DUI)), driving while impaired by alcohol, reckless endangerment, reckless driving, and two counts of contributing to the delinquency of a minor. He also appealed the sentence imposed. The judgment was affirmed in part, vacated in part, and reversed in part, and the case was remanded.

After consuming alcohol at a party, defendant drove his 3-year-old son, K.C., his 17-year-old son, B.L., and B.L.’s 19-year-old girlfriend, H.T., to defendant’s house in Aurora. They then decided to return to the party. B.L. drove, defendant did not restrain K.C., and they were involved in an accident where K.C. sustained severe injuries.

Defendant contended on appeal that his vehicular assault conviction must be vacated because there cannot be complicitor liability for vehicular assault (DUI). The Court of Appeals held, as a matter of first impression in Colorado, that complicitor liability does not apply to the strict liability crime of vehicular assault (DUI) because the crime does not require a culpable mental state. Therefore, defendant’s conviction for vehicular assault (DUI) was vacated.

Defendant also contended that his conviction for child abuse must be reversed because the trial court failed to require a bill of particulars and failed to require the prosecution to elect which act of child abuse supported his conviction, or, in the alternative, failed to give a unanimity instruction. The prosecution presented evidence that defendant took K.C. to a party where underage drinking and drug use was occurring, forced K.C. to drink alcohol, placed K.C. in a dryer and closed the door, took K.C. out in the cold without proper clothing, drove a vehicle while impaired with K.C. as an unrestrained passenger, and allowed B.L. to drive a vehicle while impaired with K.C. as an unrestrained passenger. Because the prosecution presented several acts that could form the basis of child abuse under CRS § 18-6-401(1)(a), the jury instructions given here did not ensure that the jury’s verdict was unanimous. Therefore, defendant’s conviction for child abuse was reversed.

Defendant further argued that his sentences must be vacated because the judge who conducted his trial was not the same judge who sentenced him. Because the record does not indicate the reason for the substitution, the case was remanded for an explanation pursuant to Crim.P. 25.

Summary and full case available here.

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Death Penalty Post-Trial Procedures Amended by Colorado Supreme Court

June 28, 2012 by Leave a Comment

On June 27, 2012, the Colorado Supreme Court announced a change to Criminal Procedure Rule 32.2 – Death Penalty Post-Trial Procedures. Crim.P. 32.2(c)(1) is amended to read as follows:

Unitary Notice of Appeal. The notice of appeal for the direct appeal and the notice of appeal for all post-conviction review shall be filed by unitary notice in the supreme court within 7 days after the trial court’s order on post-conviction review motions, or within 7 days after the expiration of the deadline for filing post-conviction review motions if none have been filed. The unitary notice of appeal need conform only to the requirements of sections (1), (2), (6) and (8) of C.A.R. 3(g).

These amendments were adopted on June 21 and are effective July 1.

Click here to review the red line changes to Crim.P. 32.2, outlined as Rule Change 2012(09).

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“Rule of Seven” Comment Added to Four Colorado Procedure Rules

June 28, 2012 by Leave a Comment

On June 27, 2012, the Colorado Supreme Court announced four amendments to various Colorado procedure rules regarding the “rule of seven” for procedural time calculations. Colorado Civil Procedure Rules 6 and 306, Criminal Procedure Rule 45, and Colorado Appellate Rule 26 were all amended with the following Comment:

AFTER THE PARTICULAR EFFECTIVE DATE, TIME COMPUTATION IN MOST SITUATIONS IS INTENDED TO INCORPORATE THE RULE OF SEVEN. UNDER THE RULE OF SEVEN, A DAY IS A DAY, AND BECAUSE CALENDARS ARE DIVIDED INTO 7-DAY WEEK INTERVALS, GROUPINGS OF DAYS ARE IN 7-DAY OR MULTIPLES OF 7-DAY INTERVALS. GROUPINGS OF LESS THAN 7 DAYS HAVE BEEN LEFT AS THEY WERE BECAUSE SUCH SMALL NUMBERS DO NOT INTERFERE WITH THE UNDERLYING CONCEPT. DETAILS OF THE RULE OF SEVEN REFORM ARE SET FORTH IN AN ARTICLE BY RICHARD P. HOLME, 41 COLO. LAWYER, VOL. 1, P 33 (JANUARY 2012).

TIME COMPUTATION IS SOMETIMES “FORWARD,” MEANING STARTING THE COUNT AT A PARTICULAR STATED EVENT [SUCH AS DATE OF FILING] AND COUNTING FORWARD TO THE DEADLINE DATE. COUNTING “BACKWARD” MEANS COUNTING BACKWARD FROM THE EVENT TO REACH THE DEADLINE DATE [SUCH AS A STATED NUMBER OF DAYS BEING ALLOWED BEFORE THE COMMENCEMENT OF TRIAL]. IN DETERMINING THE EFFECTIVE DATE OF THE RULE OF SEVEN TIME COMPUTATION/TIME INTERVAL AMENDMENTS HAVING A STATUTORY BASIS, SAID AMENDMENTS TAKE EFFECT ON JULY 1, 2012 AND REGARDLESS OF WHETHER TIME INTERVALS ARE COUNTED FORWARD OR BACKWARD, BOTH THE TIME COMPUTATION START DATE AND DEADLINE DATE MUST BE AFTER JUNE 30, 2012. FURTHER, THE TIME COMPUTATION/TIME INTERVAL AMENDMENTS DO NOT APPLY TO MODIFY THE SETTINGS OF ANY DATES OR TIME INTERVALS SET BY AN ORDER OF A COURT ENTERED BEFORE JULY 1, 2012.

These amendments were adopted on June 21, 2012, and are effective July 1.

Click here to review the red line changes to these rules, outlined as Rule Change 2012(08).

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Criminal Procedure Rule 17(h) Revised for Failure to Obey Subpoena; Effective in July

April 23, 2012 by Leave a Comment

The Colorado Supreme Court has amended Rule 17(h) of the Colorado Rules of Criminal Procedure – Failure to Obey a Subpoena. The rule change comes after the Court requested comment last year. The new rule reads:

(h) Failure to obey subpoena.

(1) Contempt. Failure by any person without adequate excuse to obey a duly served subpoena may be deemed a contempt of the court from which the subpoena issued. Such contempt is indirect contempt within the meaning of C.R.C.P. 107. The trial court may issue a contempt citation under this subsection (1) whether or not it also issues a bench warrant under subsection (2) below.

(2) Trial witness—bench warrant.

(A) When it appears to the court that a person has failed without adequate excuse to obey a duly served subpoena commanding appearance at a trial, the court, upon request of the subpoenaing party, shall issue a bench warrant directing that any peace officer apprehend the person and produce the person in court immediately upon apprehension or, if the court is not then in session, as soon as court reconvenes. Such bench warrant shall expire upon the earliest of:

(i) submission of the case to the jury; or

(ii) cancellation or termination of the trial.

(B) Upon the person’s production in court, the court shall set bond.

This amendment was adopted on April 23, 2012 and is effective July 1, 2012.

Click here to review the red line changes to Rule 17(h), outlined as Rule Change 2012(05).

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Colorado Court of Appeals: Defendant Waived Statutory Right to Be Advised of Possible Penalties Faced if Deferred Judgment Agreement Were to Be Revoked

March 19, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Finney on March 15, 2012.

Deferred Judgment—Revocation—Due Process—Advisement—Sentence—Mitigating Evidence—Ineffective Assistance of Counsel.

Defendant appealed the revocation of his deferred judgment conviction. The judgment was affirmed.

In 2003, defendant was charged with three counts of class 3 felony sexual assault and three counts of class 4 felony sexual assault. Defendant entered into a deferred judgment, subsequently violated the conditions of the deferred judgment, waived any further advisement on revocation of the deferred judgment, and admitted to violating the deferred judgment. The trial court sentenced him on revocation of the deferred judgment and denied his post-conviction motions.

Defendant contended that the second judge’s denial of his post-conviction motions was error. Specifically, he argued that the Constitution’s Due Process Clause requires that the second judge advise him of the penalties he faced if the deferred judgment agreement were to be revoked. The Court of Appeals disagreed. Plea counsel, in defendant’s presence, waived defendant’s statutory right to be advised of the possible penalties defendant faced if the deferred judgment agreement were to be revoked. By its terms, Crim.P. 11 expressly applies to the entry of the guilty plea. Crim.P. 11 does not require the court to inform defendant of the possible penalties he could face when revoking the deferred judgment agreement in which he expressly waived a formal advisement and for which he repeatedly was informed of the potential penalties.

Defendant raised two contentions about the sentencing hearing. He argued that the fifth judge (1) denied him his right to offer mitigating evidence at the sentencing hearing when the court denied plea counsel’s motion to continue the hearing; and (2) ignored mitigating evidence when he imposed sentence. However, defendant did not demonstrate that he actually was prejudiced by the trial court’s decision to deny his request for a continuance. As a result, the fifth judge did not abuse his discretion when he denied that motion. Further, defendant did not raise the issue of mitigation before the trial court, so the Court declined to address that issue.

Defendant also argued that (1) the second judge unreasonably limited the evidence he could submit at the post-conviction hearing; and (2) plea counsel was ineffective in his representation of defendant during the deferred judgment revocation process. The Court disagreed. The trial court did not abuse its discretion by limiting the time in which defendant presented evidence on his allegation either that plea counsel was ineffective or that the court erroneously denied his motion to reconsider his sentence. Defendant had sufficient opportunity to present evidence in support of his post-conviction claims. Further, the record does not support a conclusion that there was a reasonable probability that, but for plea counsel’s alleged errors, defendant would not have confessed the motion to revoke his deferred judgment and would have insisted on having a hearing on the motion. Therefore, defendant was not prejudiced by plea counsel’s alleged deficient performance.

Defendant asserted, and the prosecution conceded, that the mittimus incorrectly stated that his sentence includes a mandatory three-year term of parole. Under CRS § 18-1.3-1006(1)(b), defendant’s conviction required a ten-year-to-life parole term. Thus, the case was remanded to correct the mittimus to reflect the proper parole term.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.

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Proposed Rule Change to Colorado Rules of Criminal Procedure 32.2(c)(1)

March 16, 2012 by Leave a Comment

The Colorado Supreme Court is proposing changes to Crim.P. 32.2(c)(1) an is seeking comments on the amended rule. The revised rule will read:

(c)  Appellate Procedure.

(1) Unitary Notice of Appeal.  The notice of appeal for the direct appeal and the notice of appeal for all post-conviction review shall be filed by unitary notice of appeal in the supreme court no later than WITHIN 7 days after the trial court’s order on post-conviction review motions, OR WITHIN 7 DAYS AFTER THE EXPIRATION OF THE DEADLINE FOR FILING POST-CONVICTION REVIEW MOTIONS IF NONE HAVE BEEN FILED.  The unitary notice of appeal need conform only to the requirements of sections (1), (2), (6) and (8) of C.A.R. 3(g).

An original plus eight copies of written comments concerning this rule change should be submitted no later than 5:00 pm on Monday, April 30, to: Christopher T. Ryan, Clerk of the Colorado Supreme Court, 101 W. Colfax Ave., Ste. 800, Denver, Colorado 80202.

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Colorado Court of Appeals: District Court Abused Discretion By Not Allowing Response to Motion for Post-Conviction Relief

February 7, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Davis on February 2, 2012.

Crim.P. 35(c)—Parole Revocation—Public Defender

Defendant Gene V. Davis appealed the district court’s order denying his Crim.P. 35(c) motion for post-conviction relief. The order was reversed and the case was remanded for further proceedings.

In 2000, Davis pleaded guilty to first-degree aggravated motor vehicle theft and was sentenced to six years in prison, followed by five years of mandatory parole. On October 23, 2004, Davis was released from prison and placed on parole. On August 12, 2008, a parole complaint was filed with the Parole Revocation Board alleging that Davis violated three conditions of his parole. After Davis’s parole was revoked, he challenged his parole revocation by filing a pro se Crim.P. 35(c) motion in the district court, alleging numerous procedural and substantive defects, and requesting the appointment of post-conviction counsel. The district court ordered the Attorney General’s Office to file a response to Davis’s motion on behalf of the parole board, but did not serve a copy of Davis’s motion on the public defender. Thereafter, the district court denied Davis’s motion without permitting a response by the public defender.

Davis contended that the district court erred by referring his motion to the prosecution without also sending a copy to the public defender, in accordance with the procedures outlined in Crim.P. 35(c)(3)(IV) and (V). Having relied on matters outside the initial motion, files, and record to summarily deny the motion, the court was obligated to send a copy of Davis’s motion to the public defender for review. Accordingly, because Davis may have been prejudiced by the court’s procedural noncompliance, the order was reversed and the case was remanded with directions for the court to send a copy of Davis’s motion to the public defender with instructions for the public defender to file a timely response pursuant to Crim. P. 35(c)(3)(V).

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 2, 2012, can be found here.

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[UPDATED] Criminal Procedure Rule 17(h) Revised for Failure to Obey Subpoena; Comments Sought

September 20, 2011 by 3 Comments

Editor’s Note: State Judicial posted a revised version of the proposed changes in October. The links below now direct readers to the updated recommendation.

The Colorado Supreme Court is requesting written public comments by any interested person on proposed changes to Crim. P. 17(h). The Honorable Judge Morris Hoffman of the Denver District Court has written a letter that summarizes the proposed revisions to the rule and outlines arguments for and against the change, which adopts the common understanding that judges have the power to issue bench warrants when witnesses fail to appear for a criminal trial.

Click here to review the changes to the rule and the red line edits.

Click here to read Judge Hoffman’s letter regarding the recommended changes.

The Advisory Committee on Rules of Criminal Procedure has recommended two changes to Crim. P. 17(h), which deals generally with a subpoenaed witness’ failure to appear at a trial or hearing:

  1. A clarification that such a failure to appear is indirect contempt that may be dealt with under C.R.C.P. 107; and
  2. An addition codifying, but also limiting, what many trial judges across the state have always believed was their inherent power to issue bench warrants when witnesses fail to appear for a criminal trial.

The Committee recommends four limitations to this power to issue arrest warrants:

  1. That it be limited to trials, and not apply to hearings;
  2. That the arrested witness must be brought directly and immediately to court;
  3. That a bond be immediately set; and
  4. That the authority to issue the bench warrant automatically expires, and any already-issued warrant automatically is vacated, when the trial is either continued or concluded.

Because the Committee’s recommendations were not unanimous, Judge Hoffman outlined the process by which the Committee came to their conclusions. Due to this conflict, however, it is important that comments regarding the changes be submitted to the Colorado Supreme Court for their review by Wednesday, November 30, 2011 at 5:00 pm.

An original plus eight copies of written comments concerning this rule change should be submitted to the Clerk of the Colorado Supreme Court, Christopher T. Ryan, 101 W. Colfax Ave., Suite 800, Denver, Colorado 80202.

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Colorado Supreme Court Amends Criminal Procedure Rule

June 27, 2011 by Leave a Comment

The Colorado Supreme Court has approved an amendment to the Colorado Rules of Criminal Procedure. The changes were made to Rule 41, dealing with Search, Seizure, and Confession, and are effective immediately.

Crim. P. 41(c)(3), Application and Issuance of a Warrant by Facsimile or Electronic Transmission, was amended to add language regarding electronic transfers of documentation and electronic signatures.

A warrant, signed affidavit, and accompanying documents may be transmitted by electronic facsimile transmission (fax) or by electronic transfer with electronic signatures to the judge, who may act upon the transmitted documents as if they were originals. A warrant affidavit may be sworn to or affirmed by administration of the oath over the telephone by the judge. The affidavit with electronic signature received by the judge or magistrate and the warrant approved by the judge or magistrate, signed with electronic signature, shall be deemed originals. The judge or magistrate shall facilitate the filing of the original affidavit and original warrant with the clerk of the court and shall take reasonable steps to prevent the tampering with the affidavit and warrant. The issuing judge or magistrate shall also forward a copy of the warrant and affidavit, with electronic signatures, to the affiant. This subsection (c)(3) does not authorize the court to issue warrants without having in its possession either a faxed copy of the signed affidavit and warrant or an electronic copy of the affidavit and warrant with electronic signatures.

Committee Comment: For purposes of this rule, the term “electronic signature” has the same meaning as used in C.R.S. § 16-1-106(4)(c).

Click here to view the Criminal Procedure rule changes in their entirety.

Click here to review the Supreme Court’s other rule changes so far in 2011.

Affected Rules:

Crim. P. 41(c)(3) – “Search, Seizure, and Confession: Application and Issuance of a Warrant by Facsimile or Electronic Transmission.”

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